Supreme Court of California Justia
Citation 51 Cal. 4th 547, 247 P.3d 929, 121 Cal. Rptr. 3d 572

In re Price


Filed 2/14/11

IN THE SUPREME COURT OF CALIFORNIA

In re CURTIS F. PRICE
on Habeas Corpus.
S069685
____________________________________)

A jury convicted petitioner Curtis F. Price of the first degree murders (Pen.
Code, § 187)1 of Elizabeth Ann Hickey and Richard Barnes. As to the murder of
Hickey, the jury made special circumstance findings of multiple murder (§ 190.2,
subd. (a)(3)) and burglary murder (§ 190.2, subd. (a)(17)(G)), and it fixed the
penalty at death. The trial court denied the automatic motion to modify penalty
(§ 190.4, subd. (e)) and sentenced petitioner to death. On petitioner‘s automatic
appeal, this court unanimously affirmed the judgment. (People v. Price (1991) 1
Cal.4th 324.)
In a petition for a writ of habeas corpus, petitioner seeks relief from the
judgment. He has alleged, among other things, that during the capital trial ―the
prosecutor in this case improperly tampered with a sitting juror by sending her
alcoholic drinks and money, telling her to return a guilty verdict.‖ We issued an
order to show cause on this claim only. By limiting the order to show cause to this
single claim, we made an implicit determination that petitioner failed to state a

1
All further statutory references are to the Penal Code unless otherwise
indicated.
1



prima facie case as to the other claims alleged in the petition. (See In re
Sassounian (1995) 9 Cal.4th 535, 547.)
After the filing of respondent‘s return and petitioner‘s traverse, we
determined that there were disputed questions of fact requiring an evidentiary
hearing. We appointed as referee the Honorable W. Bruce Watson, a superior
court judge in Humboldt County, and directed him to supervise discovery, take
evidence, and make findings of fact on these questions:
―1. During [petitioner‘s] trial, did then Deputy Attorney General Ronald
Bass and Geri Anne Johnson together patronize the Waterfront Cafe in Eureka on
an evening when [Juror Z.S.] was cooking at the restaurant and Robert McConkey
was tending bar? If so, on approximately what date did this occur?
―2. While at the Waterfront Cafe, did Bass see or directly speak to [Juror
Z.S.]? What, if anything, did he say to her?
―3. While at the Waterfront Cafe, did Bass ask McConkey to take any
alcoholic drinks to [Juror Z.S.]? If so, did McConkey do so? If Bass did send
drinks to [Juror Z.S.], did he know she was an alcoholic or had an alcohol
problem?
―4. Did Bass give McConkey any money with the direction or request that
it be conveyed to [Juror Z.S.]? If so, what amount of money?
―5. If Bass gave McConkey money for [Juror Z.S.], did McConkey give
[Juror Z.S.] the money? Did [Juror Z.S.] accept it?
―6. If Bass gave McConkey money for [Juror Z.S.], did he ask McConkey
to convey any message with the money? If so, what message?
―7. Did Bass direct, request or suggest that McConkey convey money to
[Juror Z.S.] and tell her to vote guilty in [petitioner‘s] trial? If so, in what tone of
voice did he do so? Did his tone, gestures and other surrounding circumstances
suggest that he was serious or joking?
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―8. If Bass directed, requested or suggested that McConkey convey money
to [Juror Z.S.] and tell her to vote guilty, did he intend that McConkey follow that
direction, request or suggestion?
―9. If Bass directed, requested or suggested that McConkey convey money
to [Juror Z.S.] and tell her to vote guilty, did McConkey think that Bass actually
wanted him to do so?
―10. If Bass directed, requested or suggested that McConkey convey
money to [Juror Z.S.] and tell her to vote guilty, did McConkey do so?
―11. Did Johnson tell her husband, Worth Dikeman, about encountering
[Juror Z.S.] while at the Waterfront Cafe with Bass? If so, what did she tell
Dikeman?‖
The referee held an evidentiary hearing over a one-week period during
which he heard testimony from 11 witnesses, including Robert McConkey,
Geraldine (Geri) Anne Johnson, and Ronald Bass. (Juror Z.S. had died in 1989.)
The referee then prepared and submitted to this court an eight-page report stating
his findings and conclusions. In brief, the referee found that during the guilt phase
of petitioner‘s trial, Johnson and prosecutor Bass did patronize Cafe Waterfront in
Eureka on an evening when McConkey and Juror Z.S. were working there. Bass
and Johnson sat at the bar, where McConkey served them. Z.S. was cooking in
the kitchen, but she came to the bar to give menus to Bass and Johnson. On seeing
Z.S., Bass recognized her as a juror, held up his hands, and said he could not have
any contact with her. Z.S. then returned to the kitchen. Bass and Johnson
remained in the bar, where they had drinks and appetizers. When they finished,
Bass paid the bill, which was around $60 to $70, in cash, including a tip in the
range of $10 to $20. As he was doing this, Bass told McConkey, in a joking tone
of voice, to ―give this‖ or ―split this‖ with Z.S. and ―tell her to vote guilty.‖ Bass,
Johnson, and bartender McConkey all laughed at this remark, and McConkey
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understood it as a joke. Bass did not send any alcoholic drink to Z.S. Although
McConkey split the tip with Z.S., this was normal practice at the restaurant, and
McConkey did not convey any message from Bass to Z.S.
After considering the record of the evidentiary hearing and the referee‘s
report, we conclude that petitioner‘s claim lacks merit and that the order to show
cause should therefore be discharged and, by separate order, his petition for a writ
of habeas corpus should be denied.
I. THE TRIAL EVIDENCE
The evidence supporting petitioner‘s conviction and sentence has been set
forth in People v. Price, supra, 1 Cal.4th 324, and is summarized here.
Petitioner belonged to the Aryan Brotherhood, a prison gang. During the
summer of 1982, the Aryan Brotherhood‘s leaders decided to retaliate against
Steven Barnes, a prison inmate, for his testimony against Aryan Brotherhood
members. Because prison authorities had placed Barnes in protective custody, the
Aryan Brotherhood leaders decided to kill his father, Richard Barnes, and they
selected petitioner to commit the murder. Petitioner agreed.
Petitioner was released from prison in September 1982. On January 23,
1983, while petitioner was staying in Eureka, in Humboldt County, Richard
Moore‘s gun collection disappeared from his Eureka residence, apparently having
been stolen in a burglary. One of the missing weapons was a .22-caliber handgun.
On February 13, 1983, the body of Richard Barnes was found in the
bedroom of his house in Temple City, Los Angeles County. He had been killed by
three bullets from a .22-caliber handgun that had been held against the back of
Barnes‘s head. The prosecution presented evidence that petitioner was driven to
Barnes‘s house shortly before the murder and that afterwards he sent a note to an
Aryan Brotherhood leader saying: ―That‘s took care of. Everything went well.‖
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Back in Eureka, on the morning of February 19, 1983, Berlie Petrie found
the body of Elizabeth Ann Hickey, the stepdaughter of burglary victim Moore, in
the residence Petrie and Hickey shared. Hickey had been beaten to death with a
blunt instrument. Guns and other property belonging to Petrie and Hickey were
missing. Some of these items were later found in petitioner‘s car, and many of the
guns stolen from Moore, Petrie, and Hickey were found in a storage locker that
petitioner had rented in Reno, Nevada.
At the penalty phase, the prosecution presented evidence that in May 1978,
while incarcerated at San Quentin prison, petitioner had stabbed to death Leroy
Banks, an African-American inmate, because Banks allegedly had acted
disrespectfully to an Aryan Brotherhood gang member. The prosecution also
presented evidence of other crimes petitioner had committed, including robbery,
escape, and kidnapping.
II. THE REFERENCE HEARING: EVIDENCE AND FINDINGS
The evidence at the reference hearing amply supports the referee‘s findings
that during the Cafe Waterfront incident prosecutor Ronald Bass did not speak to
Juror Z.S. about petitioner‘s case, that he did not send alcoholic beverages or
money to her, and that although he told bartender McConkey to give Z.S. money
and ―tell her vote guilty,‖ Bass intended and McConkey understood that this was
merely a joke.
A. Testimony of Robert McConkey
One night during petitioner‘s trial, McConkey saw Ronald Bass and Geri
Anne Johnson come into the Cafe Waterfront together. McConkey was working
as a bartender and waiter; Juror Z.S. was working as a cook. McConkey had
known Johnson for a few years as a regular customer of the restaurant. He knew
that she was an attorney and that she was married to a deputy district attorney,
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Worth Dikeman. McConkey had not met Bass before. Petitioner‘s trial had been
reported in the local newspaper and on television and radio, and customers in the
Cafe Waterfront had talked about it. McConkey knew that Z.S. was a juror at
petitioner‘s trial.
Bass and Johnson sat down at the bar; they ―had a couple of martinis and
ordered some appetizers.‖ They stayed about an hour to an hour and a half. At
some point, Bass and Johnson became aware that Z.S. was working in the kitchen.
Shortly before they left the restaurant, Bass paid the bill, which was around $60 to
$70. Bass handed McConkey $10 or $20 as a tip and said, ―Here, split this with
[Z.S.] for a guilty verdict.‖ The tip amount was appropriate for the food and
drinks that had been ordered. Bass had a ―big smile on his face,‖ and McConkey
had no doubt that he was joking. Bass and Johnson were both laughing.
McConkey shared the tip with Z.S. because they routinely shared tips. McConkey
may have told Z.S. about Bass‘s joking remark, but he was not sure that he did.
McConkey did not recall Bass ―sharing any kind of drink with [Z.S.] in the
kitchen‖; indeed, he was ―positive‖ this did not occur. Z.S. was not allowed to
drink alcohol at the Cafe Waterfront, and McConkey did not remember ever
seeing her do so while the restaurant was open for business. At one time, Z.S. had
been in the habit of sitting at the Waterfront‘s bar and drinking ―for a couple of
hours‖ after work, but the owners stopped this practice immediately after
McConkey began working there. It was McConkey‘s responsibility to see that
Z.S. did not consume alcohol at the Waterfront.
McConkey described this incident to Gena Eichenberg, an attorney who
was one of McConkey‘s friends. He did not recall telling Eichenberg that Ronald
Bass ordered a drink for Z.S., that he (McConkey) delivered a drink to Z.S. in the
kitchen, or that Z.S. drank alcohol that night. He did not recall telling petitioner‘s
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attorney that ―Bass was having drinks sent back to [Z.S.] in the kitchen that
evening.‖
B. Testimony of Geraldine Anne Johnson
During petitioner‘s trial and at the time of her testimony at the reference
hearing, Geraldine Anne Johnson was married to Worth Dikeman, one of the
prosecutors at petitioner‘s trial. Ronald Bass was Dikeman‘s coprosecutor at that
trial. Johnson, an attorney, was the first woman partner in a Humboldt County law
firm. One evening during petitioner‘s trial, she and Bass went to Cafe Waterfront
for dinner and drinks after playing racquetball. They sat at the bar and ordered
drinks from the bartender, Robert McConkey. When Z.S. approached with menus,
Bass sprang up from his seat, went behind Johnson, held up his hands, and said
something like ―I can‘t talk to you. I‘ve got to maintain propriety.‖ Z.S. gave the
menus to Johnson, suggested ordering crab cakes, and returned to the kitchen.
Bass told Johnson that Z.S. was a juror in petitioner‘s trial.
Johnson and Bass each had two drinks and some food. After they had
finished, McConkey brought them the check, which was around $25 or $26. Bass
put two $20 bills on the bar, ―leaned down fairly conspiratorially,‖ and told
McConkey to give one of the bills to Z.S. and ―tell her to vote guilty.‖ Bass was
smiling and they all laughed ―[b]ecause it was clearly a joke.‖ McConkey took
the two $20 bills to the cash register, bringing back around $15 in change. Bass
left an appropriate tip, then he and Johnson departed. They had been in the
restaurant an hour and a half to two hours. To Johnson‘s knowledge, Bass did not
send any drinks to Z.S. in the kitchen.
The next morning, Johnson told her husband, Worth Dikeman, everything
that had happened at Cafe Waterfront. Before that evening, Johnson had never
met Z.S., but afterward she saw her again at Cafe Waterfront and they waved hello
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to each other. They also met once in the courthouse. Johnson arrived for a
hearing just after the jury in petitioner‘s case had been dismissed for the day. Z.S.
saw Johnson and gave her a hug.
C. Testimony of Ronald Bass
Ronald Bass testified that he remembered very little about the Cafe
Waterfront incident. He recalled playing racquetball with Geri Anne Johnson
during petitioner‘s trial and going afterwards to a tavern for drinks and food, but
he did not recall the tavern‘s name or location. He recalled that during petitioner‘s
trial he was in a restaurant when he learned that a woman juror was working there
as a cook or waitress, but he did not recall seeing the juror at that time. He did not
remember ever sending money or drinks to a sitting juror or asking a juror, outside
of the courtroom, to vote guilty. He would never do, and had never done, any of
those things.
D. Other Testimony
In addition to McConkey, Johnson, and Bass, petitioner called as witnesses
Gena Eichenberg, Sandra Michaels, Oscar Breiling, Rodney Emerson, and Peter
Vodopals. Eichenberg and Michaels related prior statements by bartender Robert
McConkey about the Cafe Waterfront incident. Oscar Breiling testified about
prior untrue statements by Ronald Bass. Rodney Emerson, who is Juror Z.S.‘s
son, testified about his own criminal record. Peter Vodopals, a retired deputy
public defender, testified that the judge who presided at petitioner‘s trial had asked
him to represent Z.S. in a probation revocation matter. Respondent called as
witnesses Worth Dikeman, Michael Phelan, and Virginia Bass. Their testimony
primarily concerned Bass‘s character and reputation.
Gena Eichenberg testified that during the spring of 1995 she went to the
Cafe Waterfront after work and chatted with bartender Robert McConkey, who
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said he had a ―good lawyer story‖ for her. McConkey told her that during
petitioner‘s trial, prosecutor Ronald Bass and Geri Anne Johnson had come to the
Waterfront. At some point during that evening, Bass gave McConkey $20 and
told him to give it to Z.S. and ―tell her to vote guilty.‖ McConkey told Eichenberg
that he did what Bass had asked him to do. Eichenberg knew that Z.S. had been a
cook at the Waterfront and a juror in petitioner‘s trial.
The next day, Eichenberg reported this conversation to Karen Sorensen,
one of petitioner‘s appellate attorneys. Some months later, in December 1995,
Eichenberg asked McConkey to repeat the story to Robert McGlasson.
McGlasson was another of petitioner‘s appellate attorneys, but Eichenberg told
McConkey only that McGlasson was ―an attorney from out of state.‖ The
conversation took place at a bar (not the Cafe Waterfront), and McGlasson bought
drinks for himself and McConkey. McConkey told McGlasson ―the same exact
story‖ that he had previously told Eichenberg, this time adding that Bass had
bought a drink, which McConkey took to Z.S. in the kitchen. A short time later,
McGlasson returned to Eureka with an attorney named Sandra Michaels.
Eichenberg introduced McGlasson and Michaels to McConkey, but she did not
stay to hear their conversation.
Sandra Michaels testified that in 1996 petitioner‘s attorneys hired her to
work on petitioner‘s case as an investigator. In that capacity, she interviewed
bartender Robert McConkey about an incident at Cafe Waterfront involving a
juror. The interview took place at ―a dark small bar‖ in Eureka. On entering the
bar with Robert McGlasson, she found McConkey sitting with Gena Eichenberg,
who left after making introductions. McGlasson explained that he was one of
petitioner‘s attorneys and that Michaels was also working on the case. McGlasson
said they needed to talk to McConkey some more about the incident involving
Juror Z.S. McConkey said that a prosecutor named Ron Bass and the wife of the
9

other prosecutor at petitioner‘s trial sat at the Waterfront‘s bar and had drinks. At
some point, Bass asked whether Juror Z.S. was working there that night. When
McConkey answered yes, Bass gave him either a $10 or a $20 bill and said,
― ‗Give this to [Z.S.] and tell her to vote guilty.‘ ‖ McConkey said he then went
back to the kitchen, gave the bill to Z.S., told her whom it was from, and relayed
the message about voting guilty. But McConkey also told Michaels: ― ‗I thought
[Bass] was just kidding and didn‘t really mean for [Z.S.] to vote guilty.‘ ‖
McConkey also said that Bass and the wife of the other prosecutor were sending
back alcoholic drinks to Z.S. in the kitchen.
Oscar Breiling, a retired investigator for the California Department of
Justice, testified that in April 1988 he telephoned Ronald Bass to ask him about a
California Department of Corrections and Rehabilitation investigator named James
Hahn. During that conversation, Bass told Breiling that Hahn had perjured
himself while testifying at petitioner‘s trial, that petitioner‘s case was almost lost
as a result of Hahn‘s testimony, and that there was a strong possibility that because
of Hahn‘s testimony the conviction would be reversed on appeal. Breiling
included this information in a memorandum to his superior, Hugh W. Allen, and
he sent copies of the memorandum to Bass and Senior Assistant Attorney General
John Gordnier, who was Bass‘s immediate supervisor.
At Gordnier‘s request, Breiling arranged a conference call with Bass,
during which Bass denied ever telling Breiling that Hahn had perjured himself or
that Hahn‘s testimony had jeopardized petitioner‘s conviction. Gordnier asked
Breiling to prepare a ―clarification memorandum‖ regarding this matter. Shortly
after the conference call ended, Bass came to Breiling and said that on further
reflection he did recall saying to Breiling that Hahn had committed perjury during
petitioner‘s trial. Breiling asked Bass ―to tape record his idea of what took place‖
so that Breiling could include it in the ―clarification memorandum‖ to Gordnier.
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A few days later, Breiling asked Bass when he was going to provide his
taped recollection, and Bass said he hoped that in time Gordnier would just forget
about it. Bass ultimately gave Breiling a written statement to the effect that,
during the conference call with Gordnier, Bass had meant to say he did not
remember making the statements to Breiling about Hahn, that upon reflection he
was convinced he must have made those statements, that his use of the term
―perjury‖ had been ―unfortunate,‖ and that he did not think petitioner‘s conviction
would be reversed because of Hahn‘s testimony. Apart from this one incident,
Breiling had no reason to doubt Bass‘s honesty.
Rodney Emerson testified that he is the son of Juror Z.S., who died in 1989.
He described his criminal record and indicated he had been on felony probation at
one time in Humboldt County. His mother drank alcohol but he was not aware of
its being a problem.
Peter Vodopals testified that from 1977 to 2007 he was a deputy public
defender in Humboldt County. The trial judge at petitioner‘s trial, Judge
Buffington, asked him to help Juror Z.S. with a pending probation revocation
arising from a guilty plea in January 1986 to driving under the influence.
Worth Dikeman, husband of Geraldine Anne Johnson and coprosecutor at
petitioner‘s trial, testified that during the trial Johnson told him that she and
Ronald Bass had gone for a drink at Cafe Waterfront, where Juror Z.S. worked,
and that as Bass was paying the bill he jokingly told the bartender to tell Z.S. to
vote guilty. From his wife‘s account of the incident, Dikeman had no doubt that
Bass‘s remark had been a joke. Johnson did not tell Dikeman of any contact
between Bass and Z.S. Dikeman did not discuss the incident with Bass.
Michael Phelan, a retired Court of Appeal justice, testified that he had
known Ronald Bass since 1970 when they both worked for the Contra Costa
County District Attorney‘s Office. As a deputy district attorney, Bass had
11

appeared before Phelan when Phelan was a superior court judge in Contra Costa
County. Phelan was also acquainted with Bass‘s reputation in Moraga, California,
where both Bass and Phelan lived. Bass‘s reputation for honesty, integrity, and
truthfulness was outstanding.
Virginia Bass, Ronald Bass‘s younger sister and a lifelong resident of
Eureka, testified that he is ―one of the most honest people I have ever known‖ and
that he has a good reputation for honesty in Eureka, the town where he grew up.
E. The Referee’s Findings
In response to the first question asked by our order of reference (see p. 2,
ante), the referee found that the parties agreed, and the testimony confirmed, that
Ronald Bass and Geraldine Anne Johnson had together patronized Cafe
Waterfront in Eureka on an evening when Juror Z.S. was cooking there and Robert
McConkey was tending bar. The referee found that although the exact date was
uncertain, this had occurred during the winter of 1985 to 1986, while petitioner‘s
trial was in the guilt phase.
In response to our second question, the referee found that while at Cafe
Waterfront, Bass saw and spoke to Z.S. when she brought menus to Bass and
Johnson at the bar, and that, according to Johnson‘s testimony, Bass ―held up his
hands, moved away from [Z.S.], telling her he could not speak to her, he had to
maintain propriety.‖
The referee found, in response to our third question, that while at Cafe
Waterfront, Bass did not ask bartender McConkey to take any alcoholic drinks to
Z.S. and McConkey did not do so. The referee explained that Johnson and Bass
had testified that no drinks were sent and that McConkey testified he had no
recollection of drinks being sent. Although drinks being sent was part of the
― ‗good lawyer story‘ ‖ that McConkey told to McGlasson and Michaels, he had
12

not mentioned the sending of drinks when he first related the story to Eichenberg.
The referee noted that at the hearing McConkey ―was under oath . . . and appeared
to be testifying truthfully,‖ and that Cafe Waterfront‘s owners had prohibited Z.S.
from drinking there.
In response to our fourth question, the referee found that Bass gave
McConkey $10 or $20 with a direction to give the money to or split it with Z.S.,
but also that the money was given as a tip and that the amount was appropriate to
the bill, which McConkey had testified was in the range of $60 to $70. The
referee found, in response to our fifth question, that it was reasonable to assume
that McConkey shared this tip money with Z.S., because he split tips with her in
the normal course of business.
In response to our sixth, seventh, and eighth questions, the referee found
that Bass did not give McConkey money ―to specifically give to [Juror Z.S.] and
convey a message,‖ but the referee also found that as he paid the bill and left a tip
Bass did say something to the effect of ―give her this money and tell her to vote
guilty.‖ The referee found that Bass said this in a ―joking‖ tone of voice and that
―[t]he manner in which the comment was made, in a conspiratorial fashion with a
stranger, the surrounding circumstances of alcohol consumption in a bar, and Mr.
Bass having earlier stated to [Z.S.], ‗I cannot have contact with you,‘ suggests the
intent of the remark was a joke.‖ Thus, ―[t]he evidence does not suggest or
establish Mr. Bass intended Mr. McConkey follow his suggested statement.‖
In response to our ninth and 10th questions, the referee found that, as they
had testified, both McConkey and Johnson believed that Bass‘s comment was a
joke, and that, although McConkey shared the tip with Z.S., ―there is no evidence
Mr. McConkey conveyed the joke.‖
In response to our 11th question, the referee found that Johnson described
the incident to her husband, Worth Dikeman, on the morning after it occurred.
13

The referee noted, but did not resolve, the conflict in the testimony of Dikeman
and Johnson as to whether Johnson told Dikeman that Bass had seen and spoken to
Z.S.
The referee provided this summary of his findings: ―On a late fall, winter
evening in 1985, during the guilt phase of the trial, Deputy Attorney General
Ronald Bass and [Geri Anne] Johnson, attorney and wife of Deputy District
Attorney Worth Dikeman, after playing racquetball, went together to the Cafe
Waterfront in Eureka. The Waterfront was not busy, the two patrons sat at the bar
attended by Robert McConkey. Juror [Z.S.] was cooking in the kitchen. Mr. Bass
had not been to the Waterfront before.
―The two ordered drinks, and were offered or inquired as to appetizers. At
some point [Z.S.] came from the kitchen area bringing menus.
―Mr. Bass upon seeing [Z.S.] recognized her as a juror, held up his hands,
and said in effect, I can‘t have contact with you, I have to maintain propriety.
[Z.S.] left the menus, made a food recommendation, and returned to the kitchen.
―The two ordered and consumed appetizers and alcoholic drinks. The bill
at the end of the evening was $60 – $70.
―As they were leaving and Mr. Bass [was] paying the bill, Mr. Bass said to
Mr. McConkey in a joking, conspiratorial manner, ‗give this, or split this, money
with [Z.S.], and tell her to vote guilty.‘ The three, Mr. Bass, Mr. McConkey, and
Ms. Johnson, then laughed and Mr. Bass and Ms. Johnson left the cafe. The tip
was in the range of $10 – $20.
―The following morning Ms. Johnson related the encounter with [Z.S.] to
Mr. Dikeman.
―Ten years later Mr. McConkey relates, possibly for the first time, his good
lawyer story to Ms. Eichenberg. As Mr. McConkey later related the story to
Mr. McGlasson and Ms. Michaels, added was Mr. Bass going to the Cafe and
14

asking whether [Z.S.] was working, and . . . sending . . . drinks to her in the
kitchen.‖
III. LEGAL PRINCIPLES
―Because a petition for a writ of habeas corpus seeks to collaterally attack a
presumptively final criminal judgment, the petitioner bears a heavy burden
initially to plead sufficient grounds for relief, and then later to prove them.‖
(People v. Duvall (1995) 9 Cal.4th 464, 474, original italics.) The petitioner ―must
prove, by a preponderance of the evidence, facts that establish a basis for relief on
habeas corpus.‖ (In re Visciotti (1996) 14 Cal.4th 325, 351.)
In a proceeding on a petition for a writ of habeas corpus, this court
independently reviews a referee‘s resolution of legal issues and mixed questions of
law and fact. (In re Johnson (1998) 18 Cal.4th 447, 461.) Because the referee
observes the demeanor of testifying witnesses, and thus has an advantage in
assessing their credibility, this court ordinarily gives great weight to the referee‘s
findings on factual questions. (In re Avena (1996) 12 Cal.4th 694, 710.)
―Deference to the referee is particularly appropriate on issues requiring resolution
of testimonial conflicts and assessment of witnesses‘ credibility, because the
referee has the opportunity to observe the witnesses‘ demeanor and manner of
testifying.‖ (In re Hamilton (1999) 20 Cal.4th 273, 296; accord, In re Lawley
(2008) 42 Cal.4th 1231, 1241.)
A criminal defendant‘s constitutional right to due process of law includes a
right to a trial by an impartial jury. (U.S. Const., 6th & 14th Amends.; Cal.
Const., art. I, § 16; Irvin v. Dowd (1961) 366 U.S. 717, 722; In re Hamilton, supra,
20 Cal.4th 273, 293.) ―In a criminal case, any private communication, contact, or
tampering, directly or indirectly, with a juror during a trial about the matter
pending before the jury is, for obvious reasons, deemed presumptively prejudicial
. . . [and] the burden rests heavily upon the Government to establish . . . that such
15

contact with the juror was harmless to the defendant.‖ (Remmer v. United States
(1954) 347 U.S. 227, 229; see In re Hamilton, supra, at p. 295 [―a nonjuror‘s
tampering contact or communication with a sitting juror[] usually raises a
rebuttable ‗presumption‘ of prejudice‖].) But ―it is virtually impossible to shield
jurors from every contact or influence that might theoretically affect their vote,‖
and ―due process does not require a new trial every time a juror has been placed in
a potentially compromising situation.‖ (Smith v. Phillips (1982) 455 U.S. 209,
217.) Rather, ―[a]ny presumption of prejudice is rebutted, and the verdict will not
be disturbed, if the entire record in the particular case, including the nature of the
misconduct or other event, and the surrounding circumstances, indicates there is
no reasonable probability of prejudice, i.e., no substantial likelihood that one or
more jurors were actually biased against the defendant.‖ (In re Hamilton, supra,
at p. 296, original italics.) And ―the touchstone of due process analysis in cases of
alleged prosecutorial misconduct is the fairness of the trial, not the culpability of
the prosecutor.‖ (Smith v. Phillips, supra, at p. 219.)
IV. PETITIONER’S EXCEPTIONS TO THE REFEREE’S REPORT2
In his exceptions to the referee‘s report, petitioner urges us to reject certain
of the referee‘s findings as unsupported by the evidence or as legally irrelevant, or
on both grounds. Specifically, petitioner challenges the referee‘s findings that,
during a visit to Cafe Waterfront in Eureka, Prosecutor Ronald Bass did not send
alcoholic drinks to Juror Z.S., who was a cook at the cafe; that Bass did not give
bartender McConkey money specifically to give to Juror Z.S.; that Bass used a
joking tone when instructing McConkey to tell Z.S. to vote for a guilty verdict;
that Bass did not intend for McConkey to follow that instruction; that McConkey

2
Respondent does not take exception to any of the referee‘s findings.
16



understood it was a joke; and that McConkey did not convey to Juror Z.S. Bass‘s
statement about voting for guilty. Alternatively, petitioner asks that we grant him
additional discovery that the referee denied and that we defer our decision on this
claim pending completion of that discovery and the submission of whatever
additional evidence petitioner may obtain. As we explain, we reject petitioner‘s
arguments.
As summarized above, the evidence presented at the reference hearing
amply supports each of the referee‘s findings that petitioner challenges.
Although Gena Eichenberg and Sandra Michaels testified that bartender
McConkey told them that Prosecutor Bass sent drinks to Juror Z.S., Johnson
testified that as far she knew this did not occur, Bass testified in substance that he
would never have done such a thing, and bartender McConkey testified that he
was ―positive‖ this had not occurred and also that it was his responsibility to
prevent Z.S. from drinking alcohol at Cafe Waterfront. The referee found that
McConkey ―appeared to be testifying truthfully‖ at the hearing and noted also that
McConkey had not mentioned any sending of drinks the first time he related his
―good lawyer story‖ to Eichenberg, thus suggesting that the sending of drinks was
something that McConkey invented, when relating the story to McGlasson and
Michaels, in an ill-considered attempt to enhance the story‘s entertainment value.
The referee‘s findings that prosecutor Bass did not give bartender
McConkey money specifically to give to Juror Z.S., and that Bass‘s remarks on
that subject were intended and understood to be a joke, are supported by the
hearing testimony of McConkey, Johnson, and Bass. McConkey testified that
while handing him $10 or $20 as a tip, Bass told him to ― ‗split this with [Z.S.] for
a guilty verdict.‘ ‖ McConkey understood that Bass was merely joking because
Bass and Johnson were both laughing and because the money that Bass handed
him was just a normal amount to leave as a tip. Johnson testified that Bass, as he
17

was putting two $20 bills on the bar, ―leaned down fairly conspiratorially‖ and
told McConkey to give one of the bills to Z.S. and ―tell her to vote guilty.‖
According to Johnson‘s testimony, they all laughed, and McConkey must have
understood it was a joke because, instead of giving one of the bills to Z.S.,
McConkey took both of the bills to the cash register, deducted the amount owed
for food and drink, and returned with the correct change. Bass testified, in
substance, that although he did not recall exactly what happened that evening, he
would never send money to a sitting juror for a guilty verdict.
The referee‘s finding that bartender McConkey did not convey to Juror Z.S.
the statement by Bass about voting guilty is supported by McConkey‘s testimony,
which the referee found credible, that he did not remember telling Z.S. about
Bass‘s joking remark. It is true that McConkey had earlier testified that he
thought he did tell Z.S. what Bass had said about sharing the tip, and that Gena
Eichenberg and Sandra Michaels each testified that McConkey, when telling his
―good lawyer story,‖ had said that he had given Bass‘s message to Z.S. But the
referee resolved this conflict in the evidence in favor of McConkey‘s later
testimony that he did not remember telling Z.S. what Bass had said. Deferring to
the referee on this point (see In re Lawley, supra, 42 Cal.4th 1231, 1241; In re
Hamilton, supra, 20 Cal.4th 273, 296), we conclude that petitioner has not carried
his burden of proving, by a preponderance of the evidence, that bartender
McConkey told Juror Z.S. what Bass had said about wanting Z.S. to vote guilty in
petitioner‘s trial.
Petitioner argues that on this question the referee should have shifted the
burden of proof to respondent (the Secretary of the Department of Corrections)
―because the State‘s own wrongdoing had prevented petitioner from securing the
testimony of the other eyewitness — [Juror Z.S.] — before she died.‖ The
―wrongdoing‖ to which petitioner refers is the failure of coprosecutors Ronald
18

Bass and Worth Dikeman to tell the judge presiding at petitioner‘s trial about
Bass‘s ―improper juror contact‖ with Juror Z.S. But petitioner did not establish
any ―improper juror contact.‖ The evidence at the reference hearing showed only
that as Bass and Geri Anne Johnson were sitting in Cafe Waterfront, Z.S. emerged
from the kitchen and approached them with menus. Bass jumped up from his bar
stool, moved away from Z.S., and told her that he could not talk to her. Z.S. then
made a food recommendation and returned to the kitchen. This brief and
accidental meeting did not include any communication of significance. Because
the only proven juror contact was not improper, there was no obligation to report it
to the judge presiding at petitioner‘s trial, and thus no basis for shifting to
respondent the burden of proof on the question whether bartender McConkey told
Z.S. about Bass‘s joking remark.
In any event, even if we were to find that bartender McConkey did convey
Bass‘s remark to Juror Z.S., the surrounding circumstances indicate there is no
substantial likelihood that Z.S., as a result of this incident, was actually biased
against petitioner. (See In re Hamilton, supra, 20 Cal.4th 273, 296.) Because
McConkey understood that Bass was merely joking when he told McConkey to
tell Z.S. to vote for a guilty verdict, Z.S. would have understood from McConkey
that Bass made the statement in jest. And because Bass did not send any money or
alcohol to Z.S., but merely left a normal tip for the food and beverages that had
been ordered, there was no substantial likelihood that Z.S. would have viewed the
incident as in any way significant, much less as an attempt to influence her vote.
These circumstances are sufficient to rebut any presumption of prejudice that may
have arisen from Bass‘s conduct during this incident.
Petitioner also asserts that this court should grant him discovery that the
referee denied and should postpone its decision until that discovery has been
completed. Among other things, petitioner seeks to depose the judge who
19

presided at his capital trial, to review the handwritten notes made by Prosecutor
Worth Dikeman during Juror Z.S.‘s voir dire, and to inspect the probation records
of Rodney Emerson (Juror Z.S.‘s son). Apart from asserting that he expects the
discovery ―to yield evidence about what happened at the Waterfront Cafe,‖
petitioner provides no reasoned argument and cites no authority to support a
conclusion that the referee abused his discretion in denying the requested
discovery. Because the requested discovery appears to have little if any relevance
to our reference questions, we conclude that the referee did not abuse his
discretion in denying the requested discovery.
V. CONCLUSION AND DISPOSITION
Giving great weight to the referee‘s credibility determinations, we adopt the
referee‘s factual findings. Based on those findings, we conclude that petitioner
has failed to prove by a preponderance of the evidence his claim that during his
capital trial in Eureka, Prosecutor Ronald Bass, during a visit to a local restaurant,
improperly tampered with Juror Z.S., a cook at the restaurant, by sending her
alcoholic drinks and money, or by telling her, outside the courtroom, directly or
indirectly, to vote for a guilty verdict.
Because our order to show cause and our reference order were limited to
this claim, we do not here address any other claim set forth in the petition, which
will be resolved by a separately filed order.
20

The order to show cause is discharged.
KENNARD, ACTING C. J.
WE CONCUR:

BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
GEORGE, J.*
SILLS, J.**

*
Retired Chief Justice of California, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
**
Presiding Justice of the Court of Appeal, Fourth Appellate District,
Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
21



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Price
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S069685
Date Filed: February 14, 2011
__________________________________________________________________________________

Court:

Superior
County: Humboldt
Judge: W. Bruce Watson

__________________________________________________________________________________

Counsel:

Jan Nielsen Little, under appointment by the Supreme Court; Karen S. Sorensen; Robert L. McGlasson;
Keker & Van Nest, Steven A. Hirsch, Asim M. Bhansali, Steven P. Ragland and Caitlin Bales for Petitioner
Curtis F. Price.

Daniel E. Lungren, Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, George Williamson,
Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Ronald A. Bass and Gerald
A. Engler, Assistant Attorneys General, Ronald E. Niver, Glenn R. Pruden, David H. Rose, Ronald S.
Matthias, Joyce Blair and Peter E. Flores, Jr., Deputy Attorney General, for Respondent State of California.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Jan Nielsen Little
Keker & Van Nest
710 Sansome Street
San Francisco, CA 94111-1704
(415) 391-5400

Peter E. Flores, Jr.
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5874


Original proceeding. In this case, which is related to the automatic appeal in People v. Price (1991) 1 Cal.4th 324, the Court issued an order to show cause limited to the following issue: Is petitioner entitled to relief on the claim the prosecutor in this case improperly tampered with a sitting juror by sending her alcoholic drinks and money and telling her to return a guilty verdict?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 02/14/201151 Cal. 4th 547, 247 P.3d 929, 121 Cal. Rptr. 3d 572S069685Habeas (AA Post-Judgment)submitted/opinion due

PEOPLE v. PRICE (CURTIS FLOYD) (S004719)
PRICE (CURTIS FLOYD) ON H.C. (S018328)
PRICE (CURTIS FLOYD) ON H.C. (S023791)
PRICE (CURTIS) ON H.C. (S139574)


Parties
1Price, Curtis F. (Petitioner)
San Quentin State Prison
Represented by Jan Nielsen Little
Keker & Van Nest, LLP
710 Sansome Street
San Francisco, CA

2Price, Curtis F. (Petitioner)
San Quentin State Prison
Represented by Robert L. McGlasson
McGlasson & Associates, PC
1024 Clairemont Avenue
Decatur, GA

3Department of Corrections & Rehabilitation (Non-Title Respondent)
Represented by Attorney General - San Francisco Office
David H. Rose, Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

4Department of Corrections & Rehabilitation (Non-Title Respondent)
Represented by Office of the Attorney General
Peter E. Flores, Jr., Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA


Opinion Authors
OpinionJustice Joyce L. Kennard

Dockets
Apr 21 1998Petition for writ of habeas corpus filed
Petitioner: Price, Curtis F.Attorney: Karen S. Sorensen Attorney: Robert L. McGlasson   by attorneys Karen Sorensen and Robert McGlasson (245 pp.)
Apr 21 1998Exhibit(s) filed (AA)
  3 vols. of exhibits in support of petition.
Apr 22 1998Informal response requested
  Letter sent to respondent requesting informal response (Rule 60); due 5-22-98. Any reply due within 30 days of service & filing of response.
Apr 29 1998Application for Extension of Time filed
  To file Informal Response.
May 4 1998Extension of Time application Granted
  To 6-22-98 To file Informal response
May 18 1998Motion filed (in AA proceeding)
  Motion by petitioner to disqualify Senior Assistant California Attorney General Ronald A. Bass and the entire office of the California Attorney General as counsel for the respondent.
Jun 1 1998Received:
  Request for Eot to file Oppo. to motion to Disqualify Counsel (Note: Ext. Approved. no Order Will issue. Counsel Notified by Telephone.)
Jun 4 1998Received:
  Petnr's Opposition to Resp's request for Ext. of Time.
Jun 22 1998Application for Extension of Time filed
  To file Informal Response.
Jun 24 1998Extension of Time application Granted
  To 7-22-98 To file Informal response
Jun 26 1998Received letter from:
  Atty Sorensen, dated 6-25-98.
Jul 15 1998Application for Extension of Time filed
  To file Informal Response.
Jul 20 1998Filed:
  Suppl Decl in support of request for Ext. of time to file Informal Response.
Jul 20 1998Opposition filed
  by respondent to motion to disqualify the California Attorney General's Office and Senior Asst. AG Ronald A. Bass as counsel.
Jul 22 1998Extension of Time application Granted
  To 8-21-98 To file Informal response
Aug 21 1998Application for Extension of Time filed
  To file Informal Response.
Aug 31 1998Extension of Time application Granted
  To 9-21-98 To file Informal Response.
Sep 18 1998Application for Extension of Time filed
  To file Informal Response.
Sep 22 1998Extension of Time application Granted
  To 10-21-98 To file Informal response
Oct 5 1998Filed:
  Reply to Resp's Opposition to motion to Disqualify Atty General's Office Etc.
Oct 6 1998Filed:
  declaration of Karen S. Sorensen in support of petitioner's reply to rspondent's opposition to motion to disqualify the Office of the California Attorney General and Senior Asst. AG Ronald A. Bass as counsel.
Oct 20 1998Application for Extension of Time filed
  By Respondent to file Informal response
Oct 27 1998Extension of Time application Granted
  To 11-20-98 To file Informal response
Nov 18 1998Application for Extension of Time filed
  To file Informal Response.
Nov 23 1998Extension of Time application Granted
  To 12-21-98 To file Informal Response.
Dec 16 1998Application for Extension of Time filed
  To file Informal Response.
Dec 23 1998Extension of Time application Granted
  To 1-19-99 To file Informal response
Jan 19 1999Application for Extension of Time filed
  To file Informal Response.
Jan 26 1999Extension of Time application Granted
  To 2-18-99 To file Informal Response.
Feb 17 1999Application for Extension of Time filed
  To file Informal Response.
Feb 24 1999Extension of Time application Granted
  To 3-22-99 To file Informal response no further Extensions of time Are Contemplated
Mar 17 1999Application for Extension of Time filed
  To file Informal Response.
Mar 24 1999Extension of Time application Granted
  To 4-5-99 To file Informal response no further Extensions of time will be granted
Apr 5 1999Informal Response filed (AA)
  (53 Pps Excluding Exhibits)
May 6 1999Application for Extension of Time filed
  To file reply To Informal Response.
May 10 1999Extension of Time application Granted
  To 7-9-99 To file reply To Informal Response.
Jul 7 1999Change of Address filed for:
  Atty Karen Sorensen.
Jul 8 1999Application for Extension of Time filed
  To file reply To Informal Response.
Jul 12 1999Extension of Time application Granted
  To 9-7-99 To file reply To Informal response
Sep 7 1999Application for Extension of Time filed
  To file reply To Informal response To Petition for Writ of Hc. (139 Pps.)
Sep 10 1999Extension of Time application Granted
  To 11/8/99 To Applt To file reply To Informal Response. no further Extensions Contemplated.
Nov 8 1999Application for Extension of Time filed
  To file reply To Informal Response.
Nov 12 1999Extension of Time application Granted
  To 12/20/99 To file reply To Informal Response. no further Extensions of time will be Granted.
Dec 20 1999Reply to informal response filed
Petitioner: Price, Curtis F.  
Dec 20 1999Filed:
  Supplemental Exhibits in support of Informal reply
Feb 14 2000Filed:
  Letter from Resp, dated 2-11-2000, Re: Material Forwarded to this Court by Judge Carl Holm of San Mateo Superior Court.
Feb 22 2000Filed:
  Amended Declaration of Service.
Feb 24 2000Received:
  Letter dated 2-22-2000 from Judge Carl W. Holm of San Mateo Superior Court, with Material Under Seal.
Mar 10 2000Motion filed
  By Petnr for Full & Advance Access to Materials Transmitted to this Court for its Review in His case By the San Mateo Supr. Crt., & for other Specified Relief; and Opposition to Informal request for Advance Access to and an Opportunity to Propose Redactions to said Materials (22 Pp.)
Jul 12 2000Filed:
  material received from Hon. Carl W. Holm, San Mateo County Superior Court, on 2-24-2000. *** Note: unsealed pursuant to Supreme Court order of 9-13-2000 ***
Jul 12 2000Order filed:
  Respondent's informal request for advance access to materials submitted to this court under seal by the San Mateo Superior Court, and petitioner's motion for "full and advance access" to the same materials, are granted in part. The clerk of this court is directed to permit counsel for the parties to review and copy the sealed materials. Counsel for petitioner is ordered not to disclose the contents of these materials in any way to petitioner or anyone else pending further order of this court. Within 15 days of this order, respondent may serve and file a motion proposing redaction of material. Any showing in opposition must be served and filed within 10 days after the service of the motion.
Jul 18 2000Filed letter from:
  Resp; dated 7/17/2000; re resp will not be filing a motion proposing redaction pursuant to this Court's order dated 7/12/2000.
Jul 25 2000Filed:
  petnr's application for leave to file documents ex parte & under seal; to have the protective order imposed on petnr's counsel by this court's 7-12-2000 order lifted; & for other specified relief.
Jul 25 2000Received:
  ex parte declaration of Karen S. Sorensen and attached exhibit. (Note: submitted under seal; received, not filed, pending further order from the court.)
Aug 11 2000Opposition filed
  by respondent to petitioner's motion for permission to file documents ex parte and under seal, and for other relief.
Aug 15 2000Received:
  letter from Judge Carl W. Holm, dated 8-14-2000.
Aug 21 2000Filed:
  Petner's reply to opposition to application to file documents ex parte and under seal and for other relief.
Aug 21 2000Filed:
  Petner's application to dissolve court's gag order.
Aug 21 2000Filed:
  petitioner's application for court to consider, in support of petition for writ of habeas corpus and motion to disqualify the California Attorney General's Office as counsel, all materials forwarded to this court by the Hon. Carl W. Holm.
Sep 13 2000Record ordered unsealed
  Good cause appearing, the court now rules as follows: The materials submitted to this court under seal by the San Mateo Superior Court, and that were the subject of this court's order of July 12, 2000, are ordered unsealed and the portion of this court's order of July 12, 2000, prohibiting petitioner's counsel from disclosing the contents of those materials is vacated. Except as stated above, petitioner's application filed in this court on July 25, 2000, seeking to have documents filed ex parte and under seal, is denied, and the clerk is directed to return those documents to petitioner's counsel. The clerk of this court is directed to file without seal new materials received by this court on August 15, 2000, from the San Mateo Superior Court and to permit counsel for the parties to review and copy these materials. Petitioner's application filed in this court on August 21, 2000, seeking to have the court consider all materials submitted by the San Mateo Superior Court in ruling on this habeas corpus petition and the pending motion to disqualify the Attorney General's Office as counsel for respondent, is granted.
Sep 13 2000Filed:
  material received from San Mateo County Superior Court on 8-15-2000.
Sep 14 2000Letter sent to:
  petitioner's counsel advising that the audiotape transcript they submitted for filing under seal on August 21, 2000. is being returned. The court has declined to accept it for filing.
Oct 10 2000Letter brief filed
  by resp; 10 pages)
Oct 12 2000Filed letter from:
  Applt counsel Karen Sorenson; dated 10/10/2000; re requesting 30 days (11/13/00) to reply to resp's brief.
Oct 13 2000Note:
  Atty Karen Sorensen advised by phone that applt's reply to resp's letter brief is due 11/13/2000.
Nov 13 2000Application for Extension of Time filed
  To file reply to resp's letter brief. (1st request)
Nov 15 2000Extension of Time application Granted
  To 11/29/2000 to file reply to resp's letter brief.
Nov 29 2000Note:
  request for habeas funds filed this date in related A.A. No. S004719)
Nov 29 2000Application for Extension of Time filed
  To file reply to resp's letter brief. (2nd request)
Dec 4 2000Extension of Time application Granted
  To 1/29/2001 to file reply to resp's letter brief.
Jan 29 2001Application for Extension of Time filed
  To file reply to resp's letter brief. (3rd request)
Feb 5 2001Extension of Time application Granted
  To 3/30/2001 to file petner's reply to resp's letter brief.
Feb 15 2001Note:
  Habeas Funds Request filed (confidential) - filed under A. A. appeal No. S004719
Mar 14 2001Note:
  confidential order filed re habeas funds request (filed under A.A. No. S004719)
Mar 27 2001Application for Extension of Time filed
  To file reply to resp's letter brief.(4th request)
Apr 5 2001Extension of Time application Granted
  To 4/30/2001 to file reply to respondent's letter brief.
Apr 30 2001Application for Extension of Time filed
  to file reply to respondent's letter brief. (5th request)
May 3 2001Extension of Time application Granted
  To 5/18/2001 to file reply to resp.'s letter brief.
May 18 2001Filed:
  reply to resp's 10-6-2000, letter brief (with Exhibit G, 4 cassette tape recordings.)
Jun 4 2001Filed:
  Resp.'s letter brief in response to petnr.'s filing of 5/18/2001 which is entitled "Petnr.'s Reply to Resp.'s 10/6/200 Letter Brief".
Feb 25 2003Filed letter from:
  Petitioner's counsel, dated 2/24/2003, re filing of declaration of errata and errata to petition for writ of habeas corpus.
Feb 25 2003Filed:
  Declaration of counsel re errata to petition for writ of habeas corpus, with attachments.
Feb 25 2003Filed:
  Errata to petition for writ of habeas corpus.
Feb 27 2003Filed:
  Correction to errata to petition for writ of habeas corpus filed 2/25/2003.
Aug 12 2003Motion for discovery filed (in AA proceeding)
  petitioner's motion for post-conviction discovery.
Aug 14 2003Filed:
  Supplemental declaration of service by mail of motion for post-conviction discovery.
Aug 29 2003Request for extension of time filed
  by respondent to file opposition to motion for post-conviction discovery and appointment of independent counsel. (1st request)
Sep 4 2003Extension of time granted
  to 9/22/2003 to file the opposition to motion for post-conviction discovery and appointment of independent counsel. The court anticipates that after that date, only one further extension totaling 30 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
Sep 23 2003Request for extension of time filed
  by respondent to file opposition to motion for post-conviction discovery and appointment of independent counsel. (2nd request)
Sep 26 2003Extension of time granted
  to 10/22/2003 to file opposition to motion for post-conviction discovery and appointment of independent counsel. Extension is granted based upon Deputy Attorney General David H. Rose's representation that he anticipates filing that document by 10/22/2003. After that date, no further extension is contemplated.
Oct 22 2003Opposition filed
  by respondent to "Motion for Post-Conviction Discovery and for Appointment of Independent Counsel."
Dec 17 2003Order to show cause issued
  The Director of Corrections is ordered to show cause before this court when the proceeding is ordered on calendar, why the relief prayed for should not be granted on the ground that the prosecutor in this case improperly tampered with a sitting juror by sending her alcoholic drinks and money, telling her to return a guilty verdict. The written return is to be filed and served on or before January 16, 2004. Justice Werdegar is of the opinion an order to show cause should also be issued regarding petitioner's claim of actual innocence of the murder of Richard Barnes.
Dec 18 2003Motion denied
  The motion to disqualify the Office of the California Attorney General as counsel for respondent, filed in this court on May 18, 1998, is denied.
Dec 30 2003Filed:
  "Petitioner's Reply to Respondent's Opposition to Motion for Post-Conviction Discovery and for the Appointment of Independent Counsel."
Jan 12 2004Request for extension of time filed
  to file return to order to show cause. (1st request)
Jan 16 2004Extension of time granted
  to 02/17/04 to file the return to the order to show cause. After that date, only no further extensions will be granted. Extension is granted based upon Deputy Attorney General David H. Ross's representation that he anticipates filing that pleading by 02/15/04.
Feb 11 2004Request for extension of time filed
  to file return to order to show cause. (2nd request)
Feb 26 2004Extension of time granted
  to 3/2/2004 the return to the order to show cause. Extension is granted based upon Deputy Attorney General David H. Rose's representation that he anticipates filing that pleading by 3/2/2004. After that date, no further extension will be granted.
Mar 2 2004Written return filed
  by respondent. (8 pp. - excluding attached exhibits)
Mar 25 2004Filed:
  Exhibit A to respondent's return to order to show cause (declaration of Robert McConkey).
Apr 1 2004Request for extension of time filed
  to file the traverse. (1st request)
Apr 12 2004Extension of time granted
  to May 6, 2004 to file petitioner's traverse to the return to the order to show cause.
Apr 14 2004Discovery motion denied
  The motion for postconviction discovery, filed on August 12, 2003, is denied. Denial is without prejudice to filing or refiling motions pursuant to Penal Code section 1054.9 and In re Steele (2004) 32 Cal.4th 682 in superior court.
May 6 2004Request for extension of time filed
  to file traverse. (2nd request)
May 12 2004Extension of time granted
  to 6/7/2004 to file the traverse to the return to the order to show cause.
May 17 2004Note:
  Habeas funds request filed in AA no. S004719 (confidential).
Jun 7 2004Request for extension of time filed
  to file traverse to order to show cause. (3rd request)
Jun 10 2004Extension of time granted
  to 8/6/2004 to file the traverse to the order to show cause. The court anticipates that after that date, only one further extension totaling about 30 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Aug 6 2004Request for extension of time filed
  to file traverse to order to show cause. (4th request)
Aug 10 2004Extension of time granted
  to 10/5/2004 to file the traverse to the return to the order to show cause. Extension is granted based upon counsel Karen S. Sorensen's representation that she anticipates filing that pleading by 10/5/2004. After that date, no further extension will be granted.
Oct 5 2004Traverse to return filed
  by attorneys Karen S. Sorensen and Robert L. McGlasson. (27 pp. - excluding attached exhibits)
Feb 14 2007Reference hearing ordered
  THE COURT: Based on the record in this matter and good cause appearing: The Honorable John T. Feeney, Presiding Judge of the Superior Court of California, County of Humboldt, shall select a Judge of the Humboldt County Superior Court to sit as a referee in this proceeding and shall promptly notify this court of the referee selected. After appointment by this court, the referee shall take evidence and make findings of fact on the following questions regarding the case of People v. Curtis F. Price (Humboldt County Super. Ct. No. CR9898; Judge John E. Buffington): 1. During the Curtis Price trial, did then Deputy Attorney General Ronald Bass and Geri Anne Johnson together patronize the Waterfront Cafe in Eureka on an evening when Zetta Southworth was cooking at the restaurant and Robert McConkey was tending bar? If so, on approximately what date did this occur? 2. While at the Waterfront Cafe, did Bass see or directly speak to Southworth? What, if anything, did he say to her? 3. While at the Waterfront Cafe, did Bass ask McConkey to take any alcoholic drinks to Southworth? If so, did McConkey do so? If Bass did send drinks to Southworth, did he know she was an alcoholic or had an alcohol problem? 4. Did Bass give McConkey any money with the direction or request that it be conveyed to Southworth? If so, what amount of money? 5. If Bass gave McConkey money for Southworth, did McConkey give Southworth the money? Did Southworth accept it? 6. If Bass gave McConkey money for Southworth, did he ask McConkey to convey any message with the money? If so, what message? 7. Did Bass direct, request or suggest that McConkey convey money to Southworth and tell her to vote guilty in Price's trial? If so, in what tone of voice did he do so? Did his tone, gestures and other surrounding circumstances suggest that he was serious or joking? 8. If Bass directed, requested or suggested that McConkey convey money to Southworth and tell her to vote guilty, did he intend that McConkey follow that direction, request or suggestion? 9. If Bass directed, requested or suggested that McConkey convey money to Southworth and tell her to vote guilty, did McConkey think that Bass actually wanted him to do so? 10. If Bass directed, requested or suggested that McConkey convey money to Southworth and tell her to vote guilty, did McConkey do so? 11. Did Johnson tell her husband, Worth Dikeman, about encountering Southworth while at the Waterfront Cafe with Bass? If so, what did she tell Dikeman? It is further ordered that the referee prepare and submit to this court a report of the proceedings conducted pursuant to this appointment, the evidence adduced, and the findings of fact made. Any requests for discovery in this matter should be addressed to the referee.
Feb 14 2007Letter sent to:
  the Hon. John T. Feeney, Presiding Judge (Humboldt Superior Court) re selection of referee.
Feb 23 2007Received:
  copy of Superior Court order, dated February 21, 2007, regarding selection of referee.
Mar 9 2007Counsel's status report received (confidential)
  from attorney Sorensen.
Mar 14 2007Referee appointed
  THE COURT: Based on the record in this matter and good cause appearing: The Honorable W. Bruce Watson, Judge of the Superior Court of California, County of Humboldt, is appointed to sit as referee in this proceeding and shall take evidence and make findings of fact on the following questions regarding the case of People v. Curtis F. Price (Humboldt County Super. Ct. No. CR9898; Judge John E. Buffington): 1. During the Curtis Price trial, did then Deputy Attorney General Ronald Bass and Geri Anne Johnson together patronize the Waterfront Cafe in Eureka on an evening when Zetta Southworth was cooking at the restaurant and Robert McConkey was tending bar? If so, on approximately what date did this occur? 2. While at the Waterfront Cafe, did Bass see or directly speak to Southworth? What, if anything, did he say to her? 3. While at the Waterfront Cafe, did Bass ask McConkey to take any alcoholic drinks to Southworth? If so, did McConkey do so? If Bass did send drinks to Southworth, did he know she was an alcoholic or had an alcohol problem? 4. Did Bass give McConkey any money with the direction or request that it be conveyed to Southworth? If so, what amount of money? 5. If Bass gave McConkey money for Southworth, did McConkey give Southworth the money? Did Southworth accept it? 6. If Bass gave McConkey money for Southworth, did he ask McConkey to convey any message with the money? If so, what message? 7. Did Bass direct, request or suggest that McConkey convey money to Southworth and tell her to vote guilty in Price's trial? If so, in what tone of voice did he do so? Did his tone, gestures and other surrounding circumstances suggest that he was serious or joking? 8. If Bass directed, requested or suggested that McConkey convey money to Southworth and tell her to vote guilty, did he intend that McConkey follow that direction, request or suggestion? 9. If Bass directed, requested or suggested that McConkey convey money to Southworth and tell her to vote guilty, did McConkey think that Bass actually wanted him to do so? 10. If Bass directed, requested or suggested that McConkey convey money to Southworth and tell her to vote guilty, did McConkey do so? 11. Did Johnson tell her husband, Worth Dikeman, about encountering Southworth while at the Waterfront Cafe with Bass? If so, what did she tell Dikeman? It is further ordered that the referee prepare and submit to this court a report of the proceedings conducted pursuant to this appointment, the evidence adduced, and the findings of fact made. Any requests for discovery in this matter should be addressed to the referee.
Mar 14 2007Letter sent to:
  appointed referee, the Hon. W. Bruce Watson.
Mar 16 2007Received:
  declaration of service in support of confidential status report and supporting ex parte declaration of counsel.
Jul 3 2007Letter sent to:
  referee, Judge Watson, requesting status report.
Jul 16 2007Received:
  status report from referee, dated July 12, 2007.
Jul 16 2007Counsel's status report received (confidential)
  from atty Sorensen.
Sep 6 2007Received:
  status report from referee, dated August 31, 2007.
Sep 19 2007Note:
  order filed this date in related automatic appeal, no. S004719, vacating the appointment of Karen Sorensen as lead counsel for Price, and designating Robert L. McGlasson as lead counsel of record. Jan Nielsen Little is appointed as associate counsel of record.
Oct 15 2007Received:
  status report from referee, dated October 10, 2007.
Jan 31 2008Received:
  status report from referee.
May 6 2008Received:
  status report from referee.
Jun 19 2008Received:
  status report from referee, dated June 11, 2008.
Aug 15 2008Received:
  status report from referee, dated August 12, 2008.
Sep 15 2008Motion for discovery filed (AA)
  Petitioner Curtis Price's Motion for Prehearing Discovery.
Sep 15 2008Filed:
  Declaration of Steven P. Ragland in Support of Petitioner Curtis Price's Motion for Prehearing Discovery.
Sep 30 2008Opposition filed
  by respondent, "Brief in Opposition to Petitioner Curtis Price's Motion for Pre-Hearing Discovery."
Oct 14 2008Filed:
  by petitioner, "Reply Memorandum in Support of Curtis Price's Motion for Prehearing Discovery."
Nov 24 2008Received:
  status report from referee, dated November 21, 2008.
Dec 10 2008Discovery motion denied
  Petitioner's "Motion for Prehearing Discovery," filed on October 14, 2008, is denied. Werdegar, J., was recused and did not participate.
Jan 20 2009Received:
  status report from referee, dated January 13, 2009.
May 4 2009Note:
  sent letter to referee requesting status report.
May 11 2009Received:
  status report from referee, dated May 7, 2009.
May 15 2009Received:
  status letter from referee, dated May 11, 2009.
May 26 2009Letter sent to:
  referee regarding premature transmission of reporter's transcript.
Aug 10 2009Received:
  status report from referee, dated August 6, 2009.
Oct 19 2009Referee's report filed
  referee's "Report of Proceedings: Finding of Facts Pursuant to Appointment as Referee"
Oct 23 2009Letter sent to:
  counsel inviting the parties to serve and file exceptions to the referee's findings of fact and simultaneous briefs on the merits on or before November 23, 2009. Responses, if any, should be served and filed 30 days thereafter.
Nov 12 2009Request for extension of time filed
  to file petitioner's exception's to the referee's report and brief on the merits. (1st request)
Nov 13 2009Request for extension of time filed
  to file respondent's exceptions to the referee's report and brief on the merits. (1st request)
Nov 17 2009Extension of time granted
  Good cause appearing, and based upon counsel Jan Nielsen Little's representation that she anticipates filing the exceptions to the referee's report and brief on the merits by December 22, 2009, counsel's request for an extension of time in which to file that document is granted to December 22, 2009. After that date, no further extension is contemplated.
Dec 11 2009Request for extension of time filed
  to file respondent's exceptions to referee's reports and brief on the merits.(2nd request)
Dec 14 2009Request for extension of time filed
  to file petitioner's exception's to the referee's report and brief on the merits. (2nd request)
Dec 15 2009Extension of time granted
  Good cause appearing, and based upon Deputy Attorney General Peter E. Flores, Jr.'s representation that he anticipates filing the exceptions to the referee's report and brief on the merits by December 23, 2009, counsel's request for an extension of time in which to file that brief is granted to December 23, 2009. After that date, no further extension is contemplated.
Dec 15 2009Filed:
  Amended Application and Declaration of Good Cause for Second Extension of Time to File Exceptions to the Referee's Report and Brief on the Merits.
Dec 17 2009Extension of time granted
  Good cause appearing, the request of respondent for an extension of time to file the exceptions to the report of referee and brief on the merits is extended to and including January 21, 2010. After that date, no further extension is contemplated.
Dec 23 2009Extension of time granted
  Good cause appearing, the request of petitioner for an extension of time to file the exceptions to the report of referee and brief on the merits is extended to and including January 21, 2010. After that date, no further extension is contemplated.
Dec 31 2009Filed:
  evidentiary hearing record: 2 vols. of reporter's transcript (692 pp.); 4 vols. of "clerk's transcript" (1,090 pp.); original court documents; exhibits.
Jan 21 2010Exceptions/briefing filed re referee's report
Petitioner: Price, Curtis F.Attorney: Jan Nielsen Little   (11,456 words; 46 pp.) excluding attached exhibits.
Jan 21 2010Exceptions/briefing filed re referee's report
Non-Title Respondent: Department of Corrections & RehabilitationAttorney: Attorney General - San Francisco Office   (7,774 words; 27 pp.) excluding attached exhibits. *****WITHDRAWN PURSUANT TO COURT'S ORDER OF FEBRUARY 24, 2010*****
Feb 22 2010Response brief re referee's report (awaiting further responses)
Petitioner: Price, Curtis F.Attorney: Jan Nielsen Little Attorney: Robert L. McGlasson   (3,059 words; 12 pp.)
Feb 22 2010Response brief re referee's report (case fully briefed)
Non-Title Respondent: Department of Corrections & RehabilitationAttorney: Office of the Attorney General   respondent's response to petitioner's post-hearing brief and exceptions to the referee's report. (4,847 words; 17 pp.)
Feb 22 2010Filed:
  by respondent, "Application and Declaration of Good Cause for Motion to File Amended Respondent's Exceptions to the Referee's Findings and Brief on the Merits"
Feb 24 2010Order filed
  On the court's own motion, Respondent's Exceptions to the Referee's Findings and Brief on the Merits filed on January 21, 2010 is ordered withdrawn. Good cause appearing, respondent's "Application and Declaration of Good Cause for Motion to File Amended Respondent's Exceptions to the Referee's Findings and Brief on the Merits" is granted.
Feb 24 2010Response brief re referee's report (case fully briefed)
Non-Title Respondent: Department of Corrections & RehabilitationAttorney: Office of the Attorney General   (7,774 words; 27 pp.) excluding attached exhibits)
Sep 28 2010Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the November calendar, to be held the week of November 1, 2010, in San Francisco.
Oct 15 2010Filed:
  letter from Deputy Attorney General Peter E. Flores, dated October 14, 2010, requesting that the court schedule oral argument for December 6, 7, 8, 2010 due to a prepaid vacation out of the country.
Oct 27 2010Case ordered on calendar
  to be argued Wednesday, December 8, 2010, at 9:00 a.m., in Los Angeles
Oct 12 2010Justice pro tempore assigned
  Hon. David G. Sills Fourth appellate District, Division Three (Werdegar, J., recused)
Nov 8 2010Received:
  appearance sheet from Deputy Attorney General Peter Flores, Jr. indicating 30 minutes for oral argument for respondent.
Dec 8 2010Cause argued and submitted
 
Jan 3 2011Justice pro tempore assigned
  George, C.J. (retired), appointed as justice pro tempore to this case.
Feb 10 2011Notice of forthcoming opinion posted
  To be filed on Monday, February 14, 2011 at 10 a.m.

Briefs
Mar 2 2004Written return filed
 
Oct 5 2004Traverse to return filed
 
Feb 22 2010Response brief re referee's report (case fully briefed)
Non-Title Respondent: Department of Corrections & RehabilitationAttorney: Office of the Attorney General  
Feb 24 2010Response brief re referee's report (case fully briefed)
Non-Title Respondent: Department of Corrections & RehabilitationAttorney: Office of the Attorney General  
Brief Downloads
application/pdf icon
s069685-1-petitioners-petition-for-writ-of-habeas-corpus.pdf (11053180 bytes) - Petitioners Petition for Writ of Habeas Corpus
application/pdf icon
s069685-2-respondents-opposition-filed-on-july-20-1998.pdf (131742 bytes) - Respondents Opposition (Filed July 20, 1998)
application/pdf icon
s069685-3-respondents-informal-response-to-writ-of-habeas-corpus.pdf (3756561 bytes) - Respondents Informal Response to Writ of Habeas Corpus
application/pdf icon
s069685-4-petitioners-reply-to-informal-response-to-petition.pdf (6720114 bytes) - Petitioners Reply to Informal Response to Petition
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 8, 2011
Annotated by robert woodward

FACTS
Curtis F. Price petitioned for a writ of habeas corpus, seeking relief from a judgment sentencing him to death for first-degree murders. Petitioner alleged that during his capital trial, the prosecutor improperly interfered with a sitting juror. Petitioner also alleged other causes for a writ of habeas corpus, but the Court found that he had failed to make a prima facie case for them, and proceeded to consider only the alleged jury interference.

Petitioner claimed that during his trial, Bass, the prosecuting Deputy Attorney, and Johnson, the wife of one of the other trial prosecutors, went to the restaurant where one of the sitting jurors was working. He further alleges that Bass sent the juror money and alcoholic drinks and told her to return a guilty verdict.

The Court appointed a superior court judge in Humboldt County to referee and examine Petitioner’s allegations. The referee found that Bass and Johnson went to the restaurant while the juror was working there but that Bass told the juror he could have no contact with her. The referee found that Bass gave the bartender a tip and told him to split it with the juror and tell her to return a guilty verdict. But he also found that the tip was appropriate to the size of the bill, it would have been customary to split the tip with the juror, and that the suggestion was understood as a joke. The referee did not find that the bartender conveyed the message to the juror or that Bass sent any alcoholic drinks to the juror.

PROCEDURAL HISTORY
At trial in Superior Court of Humbolt County, a jury convicted Petitioner of the first-degree murder (Pen. Code § 187), including a finding of multiple murder (Pen. Code § 190.2(a)(3)) and burglary murder (Pen. Code § 190.2(a)(17)(G)). On automatic appeal, the Supreme Court of California unanimously affirmed the judgment. People v. Price, 1 Cal.4th 324 (1991).

ISSUES
(1) Does Petitioner bear the burden of pleading and proof that the prosecutor improperly interfered with a juror and that this was material to the trial? If so, did he meet his burden?
(2) Did the referee improperly disallow further discovery?

HOLDING
(1) Petitioner bears the burden of pleading and proof of improper interference with the jury, but in this case Price failed to do so. If he had met his burden, Respondent would then have then borne the burden of showing that such interference was immaterial.

(2) No. The referee was within his discretion to allow further appeal.

ANALYSIS
(1) For a habeas petition, Petitioner must plead sufficient grounds for relief and then prove by preponderance of the evidence, facts that would establish grounds for relief, such as interference with the jury. Thus, Petitioner bears the burden of proof and pleading improper juror contact.

In a habeas petition proceeding, the Court reviews the referee’s judgment on legal issues and mixed questions of law and fact. But the Court gives great weight to the referee’s findings on factual questions because the referee can observe the demeanor of testifying witnesses. In this case, the referee found that there was no improper juror contact because the prosecutor merely told the juror that he could have no contact with her and the prosecutor did not send alcohol or money to her to gain a guilty vote at trial.

The Court agreed with the referee’s findings and concluded that Petitioner did not meet his burden to prove improper juror contact as grounds for a habeas petition.

(2) The requested discovery was irrelevant to the issues of the appeal so the referee did not abuse his discretion by disallowing further discovery.

KEY RELATED CASES
Procedural History:
People v. Price, 1 Cal.4th 324 (1991), available at http://scocal.stanford.edu/opinion/people-v-price-30996

Cited Cases:
Smith v. Phillips, 455 U.S. 209 (1982), available at http://supreme.justia.com/us/455/209/
In re Hamilton, 20 Cal.4th 273 (1999), available at http://scocal.stanford.edu/opinion/re-hamilton-31683
In re Jonson, 18 Cal.4th 447 (1998), available at http://scocal.stanford.edu/opinion/re-johnson-31510
In re Visciotti, 14 Cal.4th 325 (1996), available at http://scocal.stanford.edu/opinion/re-visciotti-31568
In re Avena, 12 Cal.4th 694 (1996), available at http://scocal.stanford.edu/opinion/re-avena-31762
People v. Duvall, 9 Cal.4th 464 (1995), available at http://scocal.stanford.edu/opinion/people-v-duvall-31585

TAGS
Habeas Corpus
Improper Juror Contact
Juror Interference
Impartial Jury
Deliberation
Misconduct

Annotation by R.M. Woodward